Monday, October 25, 2010
How to fight False Allegations ?
More often than not, the "X" sees that her case isn't as strong as she thought it would be, so is stooping to making ridiculous and hurtful claims as a legal tactic. This is so incredibly harmful, as it hurts the relationship that completely innocent Fathers have with their children, and the "X's" even hurt their own children in order to gain the 'upper hand'. Many "X's" will exaggerate or downright lie in order to get more child support or limit the child custody as a power play. The courts are favorably disposed toward the "X's" and the "X's" know that and take advantage of it. As I know and many other fathers know all too well, few things will beat a man down more or faster than false allegations.
One of the first things that you need to remember is, don't get caught up in trying to prove these false and hurtful allegations which you and your "X" both know aren't true. All you have to do is to simply state that these lies are not true and are very hurtful and then move on. Remember, the 'burden of proof' is on your "X", not you. When she is unable to prove any of the allegations, she will look even more foolish than she already does. If you spend a lot of time and energy trying to prove the allegations to be false, you will look guiltier and like you have something to hide. Spend the minimal amount of time necessary to defend yourself, but don't let your attention be taken away from preparing the rest of your case. This is what your "X" ultimately wants, so don't give it to her!
Unfortunately, you cannot control your "X" and what she chooses to say or not say in her pleading. What you can do is focus on the things you can control and spend your time and energy there. You can't completely ignore the allegations, but spend the minimal amount of time necessary addressing them, and then even point out in your paperwork that her case is so weak that she has resorted to out right lying in order to improve her odds. Don't engage with her, and keep your energy where you can do the most good: Make your case as strong as it possibly can be.
Protecting Yourself Against Allegations of Abuse
Avoid Conflict: In the context of domestic abuse it can be truly said that an ounce of prevention is worth a pound of cure. When there is marital conflict, particularly when a divorce is threatened, it is important to de-escalate any conflict. Remember, what constitutes a "threat of harm" as it relates to domestic abuse is subjective. Something as innocent as blocking a person's egress from a room so that you can "talk about things" may be interpreted as domestic abuse. Hanging up the telephone on a person for the same purpose, may be sufficient to sustain a domestic abuse order.
Use Witnesses: When a divorce is threatened, it is always a good idea to have independent witnesses available when events are planned that could possibly result in conflict. Even after a conflict a witness may play a role by observing the environmental condition, whether any obvious injuries were suffered or the demeanor of parties involved.
File for a Reciprocal Order: If the allegations of abuse stem from a particular domestic conflict, you may wish to file for a restraining order first. Even if that does not occur, many jurisdictions may allow you to seek an order after the fact resulting in a potential for reciprocal orders. In some jurisdictions the allegations of each petition may be addressed in the same hearing. In others separate hearings are held.
Address the Legal Standard: All too often affidavits are filed seeking a restraining order where the allegation, if proven true, do not meet the legal standard for the entry of a restraining order. As a result, knowing the legal standard in your state can be important. Where insufficiencies in the pleadings are exposed, the case can be dismissed without an evidentiary hearing. For example, allegations that a defendant told a third party that he would harm the victim may be insufficient because it is based on hearsay or other unreliable evidence, and that the threat was not directly made or made with the intent that it would create a fear of harm in the victim. Incidents of abuse that occurred long ago are also often insufficient to support a case for domestic abuse if there are not allegations of current harm or instilling a fear of harm.
Expose Factual Inconsistencies: Once domestic abuse has been alleged, a primary goal would be to expose inconsistencies in the allegations made. The strongest inconsistency would be having a strong alibi for the time in question. Is there any independent evidence to refute the allegations? Did you make a phone call during the time in question that can be borne out by telephone records or independent witnesses? Do you have any store receipts, cash machine receipts, work time sheet or records that can demonstrate your unavailability at the time of the alleged abuse? Are there any potential witnesses who may have seen bruises or injuries allegedly sustained in a domestic incident, dating to times before the incidents alleged?
Expose Documentary Inconsistencies: The more statements a person makes about their allegations of abuse, the greater chance there may be that inconsistencies in their statements will exist. Carefully compare affidavits against police reports or other records that may exist including statements appearing in child protection records or medical treatment reports.
Expose Behavioral Inconsistencies: After domestic abuse has been alleged, it may be critical to point out that the victim acted inconsistently from the way a victim would have reacted. How much time elapsed between the alleged incidents of abuse and the complaint filed? Did the victim initiate friendly contact after the abusive incidents that are alleged? Did the victim allow parenting time after the abusive incidents alleged? Did the victim contact the police, parents, friends or any other individuals at the time or shortly after the alleged incident of abuse occurred? Who did the person call after the alleged incidents of abuse occurred?
Expose Motivation to Fabricate: Any evidence that an alleged victim had a motive to lie is valuable. The most relevant evidence is independent evidence such as letters, e-mails or other documentation from the victim threatening a custody battle or implying that they may allege abuse has occurred.
Challenge General Allegations: Allegations of abuse can often be rambling and generalized so that no specific dates or times are included. Such allegations may be challenges as too general in nature and insufficient to meet the burden of proving that abuse occurred with a preponderance of the evidence.
Object to New Allegations: Many Court will not allow a victim to supplement her initial pleadings with improved allegations at the time of the hearing. This often occurs where the victim's initial allegations were generalized or where she feels that the case is not going well. An objection may be made that the testimony being presented is outside the scope of the original pleadings and, as a result, prejudices the defendant's ability to respond. In many jurisdictions, such testimony may be excluded.
Presenting Your Case
At a return hearing, the court will hear evidence related to the allegations of abuse. Before that occurs, the Court may ask the defendant if he objects to the entry of the protective order or if he will agree to its entry without any findings that abuse occurred. The petitioner or plaintiff is the person making the allegations of abuse. That person would present their case first by calling their witnesses to testify and presenting any supporting evidence through those witnesses.
The respondent or defendant is the person defending against the allegations of abuse. He will have the opportunity to make objections to testimony or evidence that is improperly offered and to cross examine any witnesses that testify including the petitioner. During direct examination, listen for testimony that is not based on personal experience. Such testimony should be objected to as inadmissible hearsay. Key phrases to listen for to identify hearsay statements include: "she said"; "I was told"; "I learned"; "it said."
When documents are presented as evidence, listen to the testimony to determine whether there has been any foundation laid for the document presented. "Foundation" means that the witness has testified to establish facts demonstrating that there is a sufficient basis to believe the document is authentic and reliable. If not, you may object to the exhibit as "lacking foundation." A witness may also not testify to the content of a document unless and until it has been offered and accepted by the court as an exhibit.
With regard to your cross examination, it is important to prepare an outline of questions for each witness that you will cross examine including the testimony that you intend to illicit. In cross examination, you should focus on exposing inconsistencies in the petitioner's claims including the timing of the events alleged, location where they occurred, persons present, inconsistent behaviors of the victim after the alleged incident, motives for the witness or victim to lie, and inconsistencies with other statements made by the victim. In cross examination, you do not argue with the witness. You will have the chance to present your own version of facts as part of your case in chief. Instead, cross examination questions should be leading and state a particular fact. Or example, instead of asking the open ended questions of "what happened." You should tell the witness what happened. Some examples include:
"Isn't it true that you spoke with the victim in preparing for your testimony today?"
"In fact, you spoke to her more than once?"
"You consider her a friend of yours?"
"You would like to see her prevail today, isn't that right?"
"Isn't it true that you weren't present at the time the abuse alleged occurred?"
"Isn't it true that the only information that you have comes from what the victim told you?"
After the petitioner has presented all of her witnesses, the court will afford you the opportunity to present your case. At that time you would call any witnesses testifying on your behalf. You would question those witnesses first. After your questioning is completed, the other party has an opportunity to cross examine them. It is generally not a good idea to call a witness who may be hostile to your position or who have do not know what they will say. You should prepare your witnesses in advance by discussing the potential questions that you will ask each of them and what you believe may be asked by the opposing party on cross examination.
Direct examination of your own witnesses is vastly different from cross examination. On direct examination, your witness is the star. You should ask them open ended questions and allow them to explain to the court what occurred in narrative fashion. You cannot lead them. A good question may be as simple as "what happened next?"
When presenting evidence such as a photo or a document, you must establish foundation for that record through your witness. Having good documentary evidence is entirely useless, if you cannot have it admitted into evidence. Foundation may be established by demonstrating how and when the record or photo was created and that it is a true and accurate depiction of the statements or images it represents. For example, foundation questions may follow a pattern similar to the example below:
"Your honor, may I approach the witness?" (You may have to have the exhibit marked by the clerk if that was not done in advance of the hearing. That means a sticker is placed on the record with a number or letter on it identifying it as "exhibit 1" or "exhibit A").
"Mr. Anand, I am showing you what has been marked as Exhibit 1. Do you recognize this photograph?"
"Who took the photograph?"
"When was it taken?"
"Were you present at that time."
"Is it a fair and accurate depiction of the home on that day?"
(After foundation has been laid, you publish the photograph by showing it to the opposing party or counsel and move the court for its admission into evidence.) "Your honor, defendant offers Exhibit 1."
(Once the exhibit has been accepted into evidence, only then may you question the witness about its contents).
After the defendant has called their last witness, they would rest. At that time, the Court may allow the parties to make short closing arguments why they believe the court should or should not enter the protective order. This is a time to summarize the weaknesses in the evidence and to argue that the plaintiff has not met her burden of proof under the statute.
After these brief arguments, the Court will issue its ruling.
There is no silver bullet to prevent you from being a victim of false allegations of abuse. The threat will continue to exist so long as the present definitions of abuse and legal standards of proof remain in place without additional procedural protections. As a result, it is extremely important to be vigilant for the warning signs that allegations of abuse may be made and, if they are made, being aggressively proactive in contesting them.
You're probably like most people and think that being accused of something you didn't do by your ex in an attempt to keep you from spending time with your child is unthinkable. Well think again, because it is actually very common to use this as a diversionary tactic. But what could be worse than being falsely accused, how about being falsely accused of more than one thing. That's right, it may not be just a one time deal. You may be accused of several of these things. Now if you want to know the bright side, preparing yourself by familiarizing yourself with the list is your best defense. Here are the 11 most common false allegations:
1. Physical abuse of the child
* Hitting, spanking, or otherwise doing bodily harm.
2. Mental abuse of the child
* Yelling, profanity, degrading, or otherwise making the child feel badly about themselves (including being with the other parent).
3. Sexual abuse of the child
* Inappropriate touching, fondling, play or other inappropriate behavior.
4. Neglect of the child
* Leaving the child alone, not caring for the child, leaving the child in an unsafe place.
5. Abandonment of the child
* Taking off without the child, leaving the child without letting some know where you are going or if you will return.
6. Physical abuse of the spouse
* Laying hands or harmful implements on your ex spouse (harmful for custody if in front of the child).
* Actions leading to a Domestic Violence Restraining Order (DV)
7. Mental abuse of the spouse
* Yelling, profanity, degrading, or otherwise making the them feel badly about themselves.
8. Financial abuse of the spouse
* Withholding or denying payment of expenses including child support, spousal support, or other agreed payments.
9. Drug use
* Problems with prescription drugs or controlled substances.
* Abuse of liquor, including driving while under the influence.
* Inappropriate relationship with another person that causes problems the child is aware of.
Now that you know what you have to look forward to (in a not so good way) here's a bit of good news. If you meet these challenges head on and prove that they are truly false, you my have recourse to use the false allegation against them.
If you met these challenges head on and can make a good argument that they are false you can flip it and turn the allegation in your favor. It changes the negative allegation into the positive of the ex not being trustworthy. If they would lie about that, what else would they lie about?
The key to proving the allegation is false it simply this. A liar cannot keep a straight story. Since the lie was made to cover one issue, when another rises up the liar won't be able to remember the details well enough to weave them together. Ask the person investigating the lie to challenge it. For example, if Women Cell is called, let them know you are in the middle of a custody battle. This will give them a plausible explanation for the call.
It never fails to amaze me at how cruel parents can be with each other when it comes to visitation with their children. During high conflict custody battles it is all too common for emotions to be running high and parents to be focused on hurting each other and using the child to do it.
Yes, it is far more common than you might think. But how do you defend yourself against the false allegations of abandonment? First let's look at the circumstances. As it turns out these accusations come about as a result of a hurt parent taking advantage of the caring parent who is putting their child's interests first. The caring parent drops off the child, or allows the hurt parent to pick up the child for visitation. Then the hurt parent tells the caring parent that they will never see their child again and that they will file charges of abandonment.
But how does a caring parent fight back? First things first. It is very common in this circumstance for the hurt parent to be abusive. If this is the case file for a restraining order immediately.
If you have an existing order you will want to call the police and ask them to enforce it. This will end this episode but you need to document this and go back to court and ask for sanctions if it happens again.
If you don't have an order you need to make sure you do your due diligence. You need to make sure you document that you have asked to have the child returned to you at the expected time. Document your phone calls, text messages, and emails. The word routine is very important here. Courts love when children have routines and hate when they don't. A parent who causes the routine to be broken can be in for a tough time in court.
After you've made your calls, texts, and emails you need to contact the police and ask them to have the child returned to you for your normal schedule (routine). The police may help you and they may not, but you are establishing a pattern here that will clearly show that you have not abandoned your child. If you don't get the child back then you need to ask the police to do a welfare check. This is a normal activity that they perform for the public. Just explain that you are in a custody battle and you need to know your child is ok. Again, this shows you have not abandoned your child.
In the mean time you need to file a motion for an emergency screening. An attorney is preferred but the self-help people at your local family courthouse can help you file the correct paperwork. The court can help you through the process of screening and meditation. Once you have an order in place your life should be much smoother.
The child custody process can be long and painful especially if parents are in high conflict. High conflict parents already don't like each other but when they can't agree on who should raise the child, where the child should live and any of the other day-to-day activities of the child then the wheels may come off altogether. When a high conflict parent feels trapped they may resort to lying about the other parents character just to gain the upper hand. But what if you were expecting that?
It is far more common than you might imagine that parents find themselves faced with false allegations when going for mediation or evaluation. The two problems it throws up in your way are:
It creates a new issue that you must address head-on.
It takes your focus off of your agenda and makes you focus on their agenda.
But what if you could set yourself up to diffuse the issue as soon as it arose? Wouldn't that keep you focused on your agenda? Of course it would. And wouldn't it be much better if the false allegation came full circle and caused the same problems for the other parent that they attempted to force onto you? Of course it would.
While I generally despise people who create problems for others, I have no issue with the problem causer getting a taste of their own medicine. I believe that if you go looking for trouble, don't be surprised when it finds you.
Here is the trap. Before you head off to mediation, evaluation, or any other event where issues are discussed, make sure you email the other parent with the concerns you know you both have. Ask for input in how to solve the problems and ask if there are any other issues you missed. Leave out one or two obvious ones that are triggers for them. They get to remind you that you are an idiot that needs to be reminded of the issues and in a perfect world, they could also suggest a solution.
This where you get to spring the trap. When you get to mediation or evaluation, the accusation gets made. You pull out the list of issues you agreed on while everything from pencils to the type of toilet paper might be listed, there are no allegations of misconduct on your part. If this is such a big problem why is it not mentioned along with the pencils and toilet paper? The court can figure this out. Now the parent making the allegations is focused on an different agenda. They are left to explain why these allegations were never mentioned.
I have no empathy for them. If they had taken your email seriously and offered a solution they wouldn't be in this situation now.
I was recently reminded of how personal an attack can be when a false allegation is made against you. The truly terrifying thing is that there is an air of being guilty until you prove you are innocent. While we grow up with the ideal that a person is innocent until proven guilty, family court is a civil court and has a completely different agenda from its criminal court cousin.
The 2 biggest problems you are faced with when being accused of a false allegation are:
The element of surprise - not being able to plan for it.
The problem of being unable to conclusively disprove a negative
So now that you understand what you are up against, let's take a look at the 2 biggest tools you have to work with:
The lack of an historical track record of the allegation.
The motivation causing the false allegation.
The first things you must do when faced with a false allegation are to deny it to the authorities (be it CPS or another agency) and inform them that you are in a high conflict custody battle, and, then put together all the documentation that you can find that shows there is no concern by the other parent of any kind of problem of this nature.
You must realize that false allegations are the other parents way of letting you know you are doing far better at custody than they can deal with. They are typically controlling in nature and are attempting to gain control again and stuff all of that anger and pain back into the background where it belongs. After all, if you have control over your own life and part of your child's life, how can they possibly control what you do, where you go, or what you say? This is why historical documentation is so important.
You see a controlling person cannot help but leave a trail of everything they have controlled. Emails about minor things like food choices, bath times, clothes, money, the list goes on. But with all of that controlling behavior, there is no mention of the horrible allegation against you.
If this is such a horrible problem, why was it not mentioned before the food choices, bath times, or money. Simple, because until it appeared that they would lose control of you there was no immediate need to trigger this emergency response in them. This is a tactic of last resort. Now move beyond reacting personally and emotionally to acting with an intentional purpose. Show the history and that there is no mention of a problem until desperation set in for them.
On the other hand you do have to tools that work in your favor.
1: The complete lack of a documented history. While you probably have loads of email or texts complaining about clothes, food, or something trivial. Where's the major allegations complaints?
2: The motivation driving the allegation. Why resort to false allegations? You must be doing something right.
Because it caught you off guard, you were not prepared to deal with it as quickly as you should. Depending on the type of allegation and how it came about, you may find yourself kept from your child, or finding it in court documents that were served on you. Either way it is an unpleasant feeling.
If you find yourself talking to a court worker unexpectedly, you should make sure you ask the question, if they know you are in a high conflict custody battle. This in most instances is all they need to hear. If you don't say that and find yourself in much more dire straits, then share some email or texts with the investigator. Then ask the question, if this is such a horrible crime, why is the other parent concerned with daily tasks in their communication with you? Why not address this horrible accusation directly?
While you cannot directly disprove a negative, you can point the light and ask why now? Above all, don't panic. This normally means you were doing well and they fear losing control. Keep your cool and ask why now? Why this? Why not before? These cases are painful but they can be won if you ask the right questions.